outside the growing district. To assist the shippers in this emergency, the Southern Pacific Company established on 1 day's notice, effective September 7, 1936, on lettuce and October 4, 1936, on carrots, transit at Santa Clara and Los Angeles on shipments from Hollister, Watsonville, Castroville, Monterey, Salinas, and Spreckels, Calif., all of which, on transcontinental traffic, are in the same origin group as Molus, but transit was not accorded to shippers at the latter point until November 23, 1936. All but one of the shipments on which complainant seeks reparation moved from Molus prior to October 4, 1936, when the transit arrangement on carrots was granted shippers at the other points named. Complainant, however, contends carrots should have been accorded transit at the same time transit was accorded on lettuce, as the transportation and emergency conditions were the same. Defendants introduced no evidence.

There is no evidence to show that either the in-bound or out-bound rates to and from Santa Clara and Los Angeles were in and of themselves unreasonable. Complainant is, in effect, seeking retroactive application of a transit service voluntarily established to assist shippers in an emergency. This the Commission has repeatedly declined to sanction.

It is found that the rates assailed were not unreasonable. The complaint will be dismissed.

234 I. C. C.

No. 28117

FIELD BROS. v. ATCHISON, TOPEKA & SANTA FE
RAILWAY COMPANY, ET AL.

Submitted May 27, 1939. Decided October 27, 1939

Rate charged on a carload shipment of a power shovel and parts from Erie, Pa., to Roaring Springs, Tex., found inapplicable. Reparation awarded. Ralph W. Currie, Frank A. Leffingwell, and Ben M. Davis for complainants.

R. S. Outlaw, Thomas F. King, and H. C. Barron for defendants. REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MAHAFFIE, MILLER, AND ALLDREDGE BY DIVISION 3:

The shortened procedure was followed. Complainants filed exceptions to, and our conclusions differ from, the examiner's recommendations.

Complainants, George A. Field and Hugh T. Field, copartners, allege by complaint filed September 22, 1938, that the rate charged on a carload shipment of a power shovel and parts moving May 2, 1935, from Erie, Pa., to Roaring Springs, Tex., and delivered May 13, 1935, was inapplicable and unreasonable. Reparation is sought. An informal complaint covering this shipment and containing these allegations was filed on behalf of complainants December 13, 1937, and closed March 24, 1938. Claims based on the allegation of unreasonableness are barred by the statute. Rates are per 100 pounds and do not include emergency charges.

The shipment, weighing 91,460 pounds, moved as routed over lines of the Bessemer and Lake Erie Railroad Company and the Erie Railroad Company to Chicago, Ill., The Atchison, Topeka and Santa Fe Railway Company to Chillicothe, Tex., and the Fort Worth and Denver City Railway Company and the Quanah, Acme & Pacific Railway Company beyond, 1,556 miles. A joint class A rate of $1.52 was charged. A combination rate of $1.38, composed of a factor of 36 cents to Chicago and a commodity rate of $1.02 to Roaring Springs, is claimed.

Item 1815 of Agent Peel's tariff I. C. C. No. 2602, which tariff named the $1.52 rate from Erie to Roaring Springs, authorized the

196834-40-vol. 234-53

application of the aggregate of intermediate interstate rates, if such aggregate of intermediates made a lower charge than the joint rates published therein. There is no dispute that the factor to Chicago was applicable in the combination rate sought.

In item 75 of Agent Peel's tariff I. C. C. No. 2606, naming class and commodity rates from Chicago to Roaring Springs, the following

appears.

ALTERNATIVE APPLICATION OF TRANSCONTINENTAL RATES AS MAXIMA.-The charges accruing under this tariff to points of destination in Texas, shall in no case exceed the charges applicable on a like shipment under the provisions (including the "Exceptions to General Application of Tariff") of Transcontinental Freight Bureau tariffs * I. C. C. No. 1312 from the same

points of origin to Deming, N. Mex.

*

Agent Toll's tariff I. C. C. No. 1329, the succeeding issue of I. C. C. No. 1312, carries a rate of $1.02, minimum 30,000 pounds, on power shovels from Chicago to Silver City, N. Mex., and, by the application of the intermediate rule, to Deming. This latter tariff in item 259, under "Exceptions to General Application of Tariff", provides as follows.

Rates apply in connection with the Quanah, Acme & Pacific Ry. and the Panhandle & Sante Fe Ry. via Floydada, Tex., only on shipments originating at points on the Quanah, Acme & Pacific Ry.:

This shipment did not move in connection with the Panhandle & Sante Fe through Floydada. Defendants contend that this exception eliminates the participation in the rates by the Quanah, Acme & Pacific and prevents the application of the maximum provision as published in Agent Peel's tariff I. C. C. No. 2606. This provision is a restriction as to shipments actually moving over the route named therein. The former item provides, in effect, for a basing rate; and for convenience the amount of the Deming rate is stated to be the amount of the basing rate. Thus it does not partake of the nature of an intermediate rule in that its application does not depend on the routing to the key point. Restrictions on the rate to Deming do not modify the application of the basing rate to Roaring Springs, to which the Deming rate applies as maximum.

We find that the rate charged was inapplicable; that the applicable rate was $1.38; that complainants received the shipment as described and paid and bore the charges thereon at the rate found inapplicable herein; and that they were damaged thereby and are entitled to reparation in the sum of $128.04, with interest. An order awarding reparation will be entered.

234 I. C. C.

CASES REPORTED IN MOTOR CARRIER CASES, UNDER PART II OF THE INTERSTATE COMMERCE ACT, WHICH INVOLVE ALSO ISSUES UNDER PART I OF THE ACT

May 28, 1939, to September 25, 1939, inclusive

Wrenn Common Carrier Application, 17 M. C. C. 353. Adequacy of rail passenger service between Portland, Oreg., and Seattle, Wash., the pooling of which had been authorized under part I, in issue in connection with an application, under part II, for authority to conduct motor passenger service between the same points.

Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467 (494). Construction of the term "transportation" as used in sec. 1 (3) of part I and in sec. 203 (a) (19) of part II.

Acme Fast Freight, Inc., Common Carrier Application, 17 M. C. C. 549. Right of freight forwarders to file rate sheets which were found not to be tariffs within the meaning of sec. 6 of part I or of sec. 217 of part II.

Chicago and Wisconsin Points Proportional Rates, 17 M. C. C. 573. Authority under part II to approve the publication of less-than-truckload proportional rates for movement beyond, in carload or truckload units, by carriers subject to parts I and II.

Carpenter Common Carrier Application, 17 M. C. C. 693; St. Johns River Line Co.-Purchase-Edwards, 25 M. C. C. 455. Water carriers, applicants under part II, found to be common carriers subject to part I.

Columbia Terms. Co. Contract Carrier Application, 18 M. C. C. 662. Jurisdiction under parts I and II of baggage transfer and pick-up and delivery by motor carrier under contract with railroads.

Gulf, M. & N. R. Co. Common Carrier Application, 18 M. C. C. 721 (730). Findings under part II, restricting operation by railroad-owned motor carrier in coordinated train-truck service to service auxiliary and supplemental to the railroad service, not to be understood as restricting the right of the railroad to use motor facilities in the manner and to the extent contemplated by part I.

234 I. C. C.

801